Citation Nr: 1811079
Decision Date: 02/22/18 Archive Date: 03/06/18
DOCKET NO. 13-13 815 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado
THE ISSUES
1. Entitlement to service connection for a cervical spine disability.
2. Entitlement to service connection for right knee disability.
3. Entitlement to service connection for left knee disability.
4. Entitlement to service connection for a left elbow disability.
5. Entitlement to service connection for a right elbow disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran and his fiancé
ATTORNEY FOR THE BOARD
K. Underwood, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1978 to November 1990.
This matter is on appeal before the Board of Veterans' Appeals (Board) from a July 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).
In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file.
The issue of low back pain has been raised by the record in an August 2017 statement, (see the Veteran's Statement in Support of Claim found in 08/21/2017, Hearing Related at 3) but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017).
FINDINGS OF FACT
1. The evidence is in equipoise as to whether the Veteran's cervical spine and right and left knee disabilities were incurred during service.
2. The Veteran does not have a current diagnosis with respect to the right or left elbows.
CONCLUSIONS OF LAW
1. The criteria for an award of service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5103 (West 2012); 38 C.F.R. §§ 3.303 (2017).
2. The criteria for an award of service connection for right knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5103 (West 2012); 38 C.F.R. §§ 3.303 (2017).
3. The criteria for an award of service connection for right knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5103 (West 2012); 38 C.F.R. §§ 3.303 (2017).
4. The criteria for an award of service connection for right elbow disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103 (West 2012); 38 C.F.R. §§ 3.303 (2017).
5. The criteria for an award of service connection for left elbow disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103 (West 2012); 38 C.F.R. §§ 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Procedural Duties
VA is required to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In March 2010, the RO sent the Veteran a letter, providing notice that satisfied VA's requirements.
Next, VA has a duty to assist the appellant in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All identified, available medical records have been obtained and considered. VA provided examinations for the Veteran's neck, knees, arms, and nerve conditions in February 2013. As such, the Board will proceed to the merits.
II. Service Connection
The Veteran contends that disabilities of his knees, neck, and upper extremities were caused during service.
Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, the evidence must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).
The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
The Veteran is competent to describe symptoms observable to his senses but not to determine the cause of musculoskeletal disabilities as this requires specialized medical knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds him credible, as his statements have been detailed and generally consistent.
III. Factual Background
The Veteran's military occupational specialty (MOS) code was 63B, Light-Wheel Vehicle Mechanic. During service, in January 1983, he complained of a stiff neck. (See 04/06/2010, STR - Medical at 4.) No other complaints or treatment is shown. The entrance and exit examinations are silent for any neck, knee, or arm problems and no relevant complaints were raised on those occasions. (See Id. at 7, 11.)
In July 2009, a private provider, Dr. P.P., diagnosed the Veteran with C3-C4 disc bulge. He found that along with the disc bulge, the Veteran's left uncovertebral joint hypertrophy resulted in the mild narrowing of the left neural foramen. (See 06/23/2010, Medical Treatment Record - Non-Government Facility at 22.)
In September 2010, a private provider, S.T.L., found that an MRI of both knees showed meniscal tears and cartilage damage. An MRI of the neck showed diffuse arthritis, although unchanged from 2009 results. (See 08/21/2017, Hearing Related at 1.)
In what appears to be a November 2010 correspondence, two of the Veteran's private providers, the aforementioned Dr. P.P., and S.T.L., a physician's assistant, sent VA a letter stating that it was their opinion that some, if not all, of the Veteran's pain and arthritic conditions were a direct result of the type of mechanical work the Veteran performed during his active duty time. (See 11/04/2010, Medical Treatment Record - Non-Government Facility at 1).
In May 2011, the Veteran submitted a notice of disagreement that stated he had chronic neck pain that began in service. He noted that during his January 1983 appointment, he was not given an x-ray and that the provider informed him that he had a "crook in his neck," that should be treated with over-the-counter medication. Subsequent to this visit, he continued to have neck pain; he followed the provider's advice and took over-the-counter medication until it stopped working in 2009. He reiterated that his MOS was as a mechanic and that he worked in this capacity for 12 years, noting that he has slipped off of vehicles, hit his head many times, and continued to have "stressful, strenuous, physical work" throughout his time in the Army. The Veteran wrote that his lack of sick call visits during service does not mean that he did not have chronic neck pain. (See 11/30/2001, NOD at 1-2.)
In February 2013, the Veteran had a VA examination regarding his neck disorder. The examiner diagnosed degenerative joint and disk disease (DJD and DDD). The Veteran stated that his neck pain started in 2008, but was minor and became a major problem in 2009. Flare ups were not reported. Forward flexion measured to 40 degrees; extension measured to 30 degrees; right and left lateral flexion measured to 35 degrees; right and left lateral rotation measured to 55 degrees. There was no evidence of painful motion and the measurements did not change upon the administration of repetitive-use testing. Functional loss was identified as less movement than normal. The Veteran had localized tenderness/pain to palpation. Muscle strength and reflexes were found normal. Additional abnormalities, muscle atrophy, intervertebral disc syndrome, and radiculopathy were not identified. (See 02/05/2013, VA Examination at 1-13.) The examiner opined that the Veteran's neck disability was less likely than not caused by an in-service injury because his claims file did not show any evidence of a neck injury. He also noted that the Veteran reported that his problems began in 2008-09. (See 02/05/2013, VA Examination at 56.)
In February 2013, the Veteran also had a VA examination for elbow and forearm conditions. The examiner found that the Veteran did not have any current arm disability. The examiner reported that the Veteran did not complain of separate bilateral elbow problems, but instead stated that he had intermittent numbness in both upper extremities and elbows. Flare-ups were not present. Right and left elbow flexion measured to 145 degrees or greater with no evidence of painful motion. The right and left arms did not have any limitation of extension or painful motion. Repetitive use testing did not render different results. Functional loss was not found and x-rays were not performed. The examiner again found that the Veteran's claims file did not show any evidence of an arm injury and that the Veteran did not report that his problems began until 2008-09. However the examiner opined that while there was no diagnosed separate bilateral arm condition, the Veteran did have intermittent numbness that he experienced secondarily to his (non-service connected) neck disability. (See Id. at 13-25; 56; 59-62.)
The Veteran had another February 2013 VA examination for knee and lower leg conditions. The examiner found that the Veteran had degenerative joint disease, bilaterally. The Veteran reported that a private provider recommended surgery, which he neglected to have due to insurance problems. His right knee was worse than the left. He had daily pain, could walk for less than one mile, and took Advil for pain relief. Flare-ups were not reported. Right and left knee flexion measured to 140 degrees or greater with no evidence of painful motion. The right and left knees did not have any limitation of extension or painful motion. Repetitive use testing did not render different results. Functional loss was not found. Pain to palpation was found on the right knee. Strength was normal. All stability tests rendered normal results, bilaterally. There was no evidence of recurrent patellar subluxation/dislocation, shin splints, or meniscal conditions. The examiner opined that the right knee was tender, range of motion was normal, bilaterally, and crepitus was noted on the right hand side. As with the previous-mentioned conditions, the examiner found that the Veteran's claims file did not show any evidence of a knee injury and noted the timing of when he reported that his problems began (2008-09). (See Id. at 25-38; 56.)
In his May 2013 VA Form 9, the Veteran asserted that he sought medical help for both his neck and knee pain by military providers approximately three times each. He reported that he did not receive any x-rays; was told that he had a "crook" in his neck; and a knee sprain; and was advised to take over-the-counter pain medication. He reiterated that the numbness in his arms stemmed from his neck injury. He noted that at the time he began to feel pain, while in-service, his then-wife became gravely ill. He also asserted that he did, in fact, mention his knee and neck pain to a military provider upon his departure from the military, but that the provider was preoccupied with deployment-readiness for the Gulf War and did not follow up on his complaints. He also stated that his private provider, Dr. P.P., determined that he broke his right leg years ago, while he was still in-service. He reported that Dr. P.P. determined that he had degenerative joint and disk disease with upper limb numbness and another private physician found that the he needed bilateral knee surgery. He noted that he only received range of motion tests and that no imaging tests were administered. (See 05/10/2013, Form 9.)
The Veteran's representative submitted an appellate brief for all of the aforementioned claims in June 2017, following a May 2017 SSOC, which denied all of the claims.
In August 2017, Dr. P.P. and S.T.L., the above-mentioned private providers from the same practice, submitted two additional letters on behalf of the Veteran. Both letters stated that the Veteran had bilateral knee pain and chronic neck pain with numbness that radiated down both arms to his hands along with elbow pain. Regarding the knees, both letters also noted that the Veteran had bilateral knee osteoarthritis, right knee tricompartment osteophytes, and healed fracture of the proximal fibula. The letters also stated that the left knee had small osteophytes at the patella and distal femur ostochondroma. MRI scanning of his knees revealed bilateral meniscus tears and cartilage damage. Regarding the cervical spine, an x-ray showed anterior and posterior osteophytes with moderate disc space narrowing at C3-C4. The MRI also showed disc bulge and joint hypertrophy narrowing on the left neuroforamen at the C3-C4. Regarding the arms, the letter stated that the Veteran had numbness that radiated down both arms to his hands, along with elbow pain. Both providers opined that some, if not all, of the Veteran's pain and arthritic changes noted on x-rays are a direct result of the type of mechanical work he did while he was on active duty. (See 08/21/2017, Hearing Related at 1-2.).
During an August 2017 Board hearing, the Veteran testified that, while in service, he worked on vehicles such as trucks, tractors, trailers, buses, and other vehicles due to his MOS on a daily basis. Regarding his knees, he noted that there was a lot of bending, crawling, jumping over, pulling, (to include pulling engines out), rebuilding, etc. on concrete surfaces. He did not always use knee pads. He asserted that he sought in-service treatment for his knee pain, but that he was only told that he should utilize certain exercises in order to relieve his pain. (See 08/21/2017 Hearing Transcript 3-5.) He stated that he continued to have knee pain, during and after service. He noted that during the February 2013 VA examination, x-rays were not taken for his knee and implied that the examiner was not thorough. (Id. at 6, 14.) He reported the use of over-the-counter medication, heating pads, and a knee brace. He also stated that he currently worked as a press operator and that his pain was worsening. (Id. at 7.) Regarding his elbows, he noted that while working underneath vehicles and reaching for tools/moving around, he would hit various body parts on a daily basis. He stated that he took over-the-counter medication for elbow pain and that he did not receive in-service treatment for this pain, nor was he currently getting medical treatment for elbow pain (Id. at 8); however, he noted that his private provider said that this pain was coming from his neck, due to the fact that the C3 and C4 in his neck were deteriorating and affecting a nerve running down his shoulders to his hands (Id. at 9.). He attributed the above-mentioned vehicle work to his neck pain, noting that he would often have to maneuver his neck in order to service a car (Id. at 10). Regarding his neck, he noted that the C3 and C4 in his neck were deteriorating. His fiancé testified that on a weekly basis, she applied therapeutic creams, ice, and heating pads to the Veteran and noted that his hands become numb at night, at times interrupting his sleep. (Id. at 11-13.) The Veteran also noted that his pain caused him to sometimes sit down during non-break hours for 15-20 minutes during his workday.
In August 2017, five lay statements were submitted to VA on behalf of the Veteran. His fiancé of eight years noted that she witnessed the Veteran's neck and knee pain, as well as numbness, since 2009. His daughter noted that she witnessed right hand pain, knee pain, and upper and lower back pain since he was in the service. The Veteran submitted a statement that he believed that he waited too long to make his claim; that his February 2013 VA examination was not thorough; that he has yet to receive a VA card; and that he continues to have knee, neck, upper and lower back pain, right and left hand numbness, and elbow pain that stemmed from his neck condition. His sister reported that he had knee, right and elbow, neck, upper and lower back pain and hand numbness that began during his time in the military and impacted his ability to continue his work as an auto mechanic. Finally, his brother noted that the Veteran had knee, upper and lower back pain, neck pain, and pain in his hands with numbness, reiterating that he had been experiencing pain since service. (See 08/21/2017, Hearing Related.)
IV. Legal Analysis
Cervical Spine
The Board has reviewed the record and resolving doubt in the Veteran's favor, finds that the criteria for service connection for a cervical spine disability. 38 C.F.R. §§ 3.303, 3.310.
First, the evidence shows a current disability. Regarding the neck, the July 2009 private provider diagnosed the Veteran with C3-C4 disc bulge. He found that the disc bulge, along with the Veteran's left uncovertebral joint hypertrophy resulted in the mild narrowing of the left neural foramen. The September 2010 private provider found the presence of diffuse arthritis. The February 2013 VA examiner diagnosed the Veteran with degenerative joint and disk disease.
Regarding an in-service injury of the neck, the February 2013 VA examiner opined that the STRs did not show evidence and that the Veteran stated that he did not have pain until approximately 2008. However, the Veteran stated that he had pain during and since service and that he did not seek treatment beyond over-the-counter remedies until his pain worsened. Although the Veteran's January 1983 complaint of a stiff neck is the only evidence of a neck problem in the service treatment records, he has continued to reiterate that the problems began in service. His MOS was as a mechanic and he worked in this capacity for 12 years. The Veteran noted that he has slipped off of vehicles, hit his head many times, and continued to have "stressful, strenuous, physical work" throughout his time in the Army. The Veteran wrote that his lack of sick call visits during service does not mean that he did not have chronic neck pain and noted that he never received an x-ray for his neck after he sought in-service treatment and that he was advised only to take over-the-counter medication, which he adhered to for years.
Regarding nexus, as the February 2013 VA examiner found that the Veteran lacked an in-service injury, a nexus opinion was not provided. However, the Veteran's private providers, Dr. P.P. and S.T.L., clearly opined that his work as a mechanic during his 12 year period of active duty caused "some, if not all, of the Veteran's pain and arthritic changes." (See 08/21/2017, Hearing Related at 1-2.)
The February 2013 examiner did not consider all of the Veteran's lay statements, nor did he consider the impact of the Veteran's MOS, therefore his opinion did not review all relevant evidence and is of diminished probative value. Moreover, there are conflicting medical opinions regarding whether the cervical spine disability began in and continued since service. As such, the evidence is in relative equipoise. In such cases, all reasonable doubt will be resolved in favor of a claimant. Given the generally consistent and credible lay testimony and the private providers' opinions, the Board resolves doubt in the Veteran's favor. 38 C.F.R. § 3.102.
Left and Right Knee
The Board has reviewed the record and resolving doubt in the Veteran's favor, finds that the criteria for service connection for left and right knees. 38 C.F.R. §§ 3.303, 3.310.
Regarding a current disability of the knees, in September 2010, a private provider, found that an MRI of both knees showed meniscal tears and cartilage damage. The February 2013 VA examiner found that the Veteran had degenerative joint disease, bilaterally.
Regarding an in-service injury of the knees, as with the neck disorder, the examiner did not find evidence of complaints of the Veteran's knees until approximately 2008. The Veteran again asserts that his knee pain began due to the mechanic work that he performed while he was in the military. He noted that there was a lot of bending, crawling, jumping over, pulling, (to include pulling engines out), rebuilding, and similar tasks performed on concrete surfaces. He did not always use knee pads. He asserted that he sought in-service treatment for his knee pain, but that he was only told that he should utilize certain exercises in order to relieve his pain. He stated that he continued to have knee pain, during and after service.
Regarding the nexus opinion, as with the neck injury a nexus opinion was not provided because the examiner did not find evidence of an in-service injury. However, using the same analysis provided to the cervical spine disability, the Board again finds that the Veteran's credible lay statements along with the private medical opinions are more probative. Further, the medical opinions regarding the left and right knee disabilities are also in relative equipoise and as such, all reasonable doubt will be resolved in favor of a claimant. (Id.)
Left and Right Elbows
Following a review of the evidence, the Board determines that the criteria for service connection for a right and/or left elbow disability have not been met. See 38 C.F.R. § 3.303. Indeed, the Board has carefully reviewed the relevant evidence of record but finds no competent evidence of a right and/or left elbow disability diagnosis in the Veteran's claims file. See Degmetich v. Brown, 104 F.3d 1327, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation); see also, Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet.App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to...filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).
As noted in the Factual Background, the February 2013 VA examination for elbows and forearm conditions rendered normal range of motion and normal additional testing results. The examiner noted that the Veteran appeared to complain of intermittent numbness rather than a separate elbow disability. None of the private providers indicated that the Veteran had a separate elbow pain-related disability; however in August 2017, Dr. P.P. and S.T.L. found numbness that radiated down both arms to his hands along with elbow pain. The Veteran mentioned arm numbness in his May 2013 Form 9, August 2017 Statement in Support of Claim, and August 2017 Board Hearing. While he reported that he bumped various body parts when working on cars and noted that he has taken over-the-counter medication for elbow pain, he also stated that he did not receive in-service treatment for elbow pain, nor was he currently seeking medical treatment for elbow pain. (See 08/21/2017 Hearing Transcript at 8.)
The Board notes that, to the extent that the arm numbness is a manifestation or component of the neck disability, this will be addressed by the AOJ in the initial rating of that disability.
In sum, the Board finds that the February 2013 VA examiner's findings are probative and that the preponderance of the evidence weighs against service connection for a right and/or left elbow condition. As the preponderance of the evidence is against a finding of a current right and/or left elbow condition, the first criteria of a service connection is not meet and the claim is denied.
ORDER
Entitlement to service connection for a cervical spine disability is granted.
Entitlement to service connection for right knee disability is granted.
Entitlement to service connection for left knee disability is granted.
Entitlement to service connection for a left elbow disability is denied.
Entitlement to service connection for a right elbow disability is denied.
______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs